Where a planning scheme is amended, the amendment shall not, unless the contrary intention expressly appears, affect any right accrued under that planning scheme.

1. In the decision of Lakkis v Wyndham CC [21], Deputy President Macnamara observed:

[29] ... Permits create substantive rights. Changes to the substantive law are presumed not to operate retrospectively. See Maxwell v Murphy [1957] HCA 7; (1957) 96, CLR 261, 267 per Dixon CJ. Where a subordinate instrument such as a planning scheme expires, lapses or ceases to have effect, the expiry, lapsing or ceasing to have effect does not affect any right, privilege, obligation or liability acquired, accrued or incurred under that subordinate instrument or provision (Section 28(2)(e) of the Interpretation of Legislation Act 1984). In my view these principles preserve the operation of [the permit under consideration in that case] and it is not dependant at all for its preservation on Clause [63][22] of the current Scheme or on Section 6(3) of the Planning and Environment Act.

1. Thus it can be said that a permit creates substantive rights as an accrued right independently of the Planning and Environment Act 1987 and the planning scheme.[23]
2. Second, a permit can also give rise to an existing use right. If a use commences under a permit, an existing use right is established under clause 63.01 of the planning scheme.
3. Clause 63.01 provides as follows:

An existing use right is established in relation to use of land under this scheme if any of the following apply:

• The use was lawfully carried out immediately before the approval date.
• A permit for the use had been granted immediately before the approval date and the use commences before the permit expires.
• A permit for the use has been granted under Clause 63.08 and the use commences before the permit expires.
• Proof of continuous use for 15 years is established under Clause 63.11.
• The use is a lawful continuation by a utility service provider or other private body of a use previously carried on by a Minister, government department or public authority, even where the continuation of the use is no longer for a public purpose.

1. It is relevant to note that it is not the permit that creates an existing use right, but the provisions of clause 63.01 of the planning scheme. Equally, an existing use right is not created by the Planning and Environment Act 1987, although some existing use rights are protected by the Act in terms that section 6(3) provides that the planning scheme cannot prevent the continuation of certain uses.[24]
2. The first dot point in clause 63.01 - the use was lawfully carried out immediately before the approval date - will often apply in situations where the use was being carried out under a permit, which was lawfully granted before the planning scheme was amended. It may also apply in situations where the use being carried out did not require a permit under the planning scheme (i.e. it was a Section 1 use). In the present case, we are dealing with the first scenario - the use of restaurant was being carried out under a permit lawfully granted before the scheme was amended to now make the use (both current and proposed) prohibited. The current use is prohibited because it is not on a lot of at least 40ha. The proposed use is prohibited for this reason and also because the number of patrons will exceed 150.
3. The second dot point in clause 63.01 - a permit for the use had been granted before the approval date and the use commences before the permit expires - refers to a situation where a permit was granted but not acted upon before the scheme was amended. The third dot point - a permit for the use has been granted under clause 63.08 and the use commences before the permit expires - is self explanatory and refers to a permit for an alternative Section 3 use. Neither the second or third dot points are relevant in this case, nor the fourth or fifth.
4. If the establishment of an existing use right is one that depends on a permit for the use having been granted, it is the use in the permit, subject to any conditions or restrictions in the permit applying to the use, that characterises the extent of the existing use right. Under clause 63.02, the extent of the existing use right is constrained by the purpose of the actual use at the relevant date, subject to any conditions or restrictions applying to the use at that date. In the case of a permit, the conditions or restrictions applying to the use would be the conditions in the permit.[25] In the case of a Section 1 use, the conditions or restrictions would be the conditions or restrictions applying to the use under section 1 or other provision of the planning scheme (eg. definition or particular provision).
5. For this reason, although it is common to say that a permit establishes an existing use right or that land has an existing use right under a permit, we do not consider this is strictly correct. The correct analysis is that an existing use right may exist under clause 63.01 of the planning scheme because the land was being lawfully used under a permit at the time when the scheme changed and that one needs to look at the permit to assess the extent of the existing use right.
6. In the present case and using this analysis, we find that the land has an existing use right for the purpose of a restaurant for 60 patrons. It does not have an existing use right for the purpose of a function centre.[26]

Can conditions in a permit that establish an existing use right be amended?

1. We have discussed earlier the process for amending permits. We will now discuss what type of amendments can be made to a permit. It is not contested that a planning permit can be amended in accordance with existing planning scheme provisions. The issue is whether it can be amended in a way that is not in accordance with existing planning scheme provisions either because:
   • The use is now prohibited; and/or
   • The conditions are contrary to the planning scheme.
2. Based on Seventh Columbo, the clear answer is that as a question of law, a permit can be amended in either of these circumstances.[27]
3. We have noted that a new permit can only be granted in accordance with the planning scheme. However, the Supreme Court in Seventh Columbo held that section 87(1) of the Planning and Environment Act 1987 vests in the Tribunal a discretionary power to "amend any permit" by which a permit holder enjoys the right to use the land for a prohibited use, including the power to amend the permit by directing that conditions be deleted or varied.
4. The primary reason for the Court's decision in Seventh Columbo was that it was contrary to well established authority concerning the interpretation of statutes to read down the provisions of the Planning and Environment Act by reference to the planning scheme[28]. In giving his reasons, McDonald J said:

[35] In my view, the Tribunal was in error in interpreting s.87(1) of the Act and in particular, the extent of the discretionary power vested in the Tribunal by that section to "amend any permit" by having reference to the provisions of the Melbourne Planning Scheme and in particular, [to the equivalent of what is now clause 63.05] of it. By interpreting the provisions of the statute by reference to the Planning Scheme, the Tribunal interpreted the meaning of the words by which it was vested with the discretionary power to amend any permit, "by reference to the terms in which a delegated power to legislate had been exercised." By adopting this process the Tribunal was in error. Parliament enacted by that section that the Tribunal should have the discretionary power to "amend any permit". By its clear terms there is to be found in that section no apparent intention of Parliament to exclude from that power, the power to amend a permit by which an owner or occupier of land enjoys non-conforming use rights in circumstances where the use is a prohibited use being a section 3 use under the Planning Scheme. In my opinion, there is not to be found in s.6(3) or any other provision of the Planning and Environment Act 1987 any basis to conclude that it was the intention of Parliament that the discretionary power vested in the Tribunal by s.87(1) of the Act, to amend a permit, should be limited in the manner as contended for by the respondent on this appeal.

1. The Court also held that the conditions of the permit that are required to be met by the equivalent of what is now clause 63.05[29] of the scheme, were those existing and affected by the amendment[30]. Thus in the event of the power under section 87(1) of the Act being exercised to delete or add a condition to the permit, the amended conditions will need to be read along with other conditions.
2. We consider that because there is no difference in the type of amendment that may be made under any of the mechanisms available under the Act (sections 72, 87 or 87A), the principles established by Seventh Columbo mean that conditions of a permit can be amended after the use has become prohibited and the power to amend a permit under the Planning and Environment Act 1987 cannot be restricted by reference to the current provisions of the planning scheme.
3. Therefore we find that, in law, there is no reason why the permit cannot be amended to increase patron numbers for the restaurant use to 274 notwithstanding a maximum number of 150 is specified in the planning scheme.

Can a permit which establishes an existing use right be amended to introduce a new use in addition to the existing use right?

1. Neither Seventh Columbo or any of the other cases we are aware of that have considered amendments to permits which establish existing use rights have involved a change of use.
2. There have been cases, such as Bestway [31] and Australian Slate-Crete Supplies[32], that say a permit can be amended by amending what the permit allows and that an additional primary permission required under the planning permit can be added within certain limits. As the Tribunal said in Australian Slate-Crete Supplies:

[29] It is essential that this amendment process extends to what the permit allows and that additional primary permissions required under the planning scheme can be added. However, there are limits to this. The process of amending a permit would stop short of allowing a transformation. In this respect, the principle of Addicoat v Fox (No 2) remains relevant - "changes made may be considerable without necessarily bringing it about that the permit granted is a different as opposed to a modified permit." [[1979] VR 347 at 363] Thus for a completely new or unrelated use or development, I consider that the proper procedure is to apply for a new permit rather than applying to amend an existing permit in such a way that would result in a different permit as distinct from modified permit.

[23] If a proposed use or development is totally unrelated to the permit as it exists and would entail completely new conditions, I consider that the amendment process would be inappropriate. There would be no point in attempting to amend a permit in such circumstances where nothing would be left of the original permit. An application for a new permit should be made. However, where the permit is not transformed but retains significant elements of its previous content, and simply adds to, expands or alters what has been previously allowed, I consider that amending a permit, rather than always having to apply for a new permit, is now clearly contemplated by the provisions in the Act.

1. The rationale in Australian Slate-Crete Supplies and Bestway for allowing certain sorts of amendments to what the permit allows is based on efficiency of process; the concept of a permit as "a comprehensive document containing all consents relevant to a piece of land and evolving over time as circumstances change, a business expands or alters, and as further development occurs"[33]; and the fact that the component elements of permit include the use or development or other things allowed by the permit, the land description and the conditions. As the Tribunal said in Bestway:

[14] ... There is no suggestion in the words of any of these provisions of the Act that changes could not be made to any of these elements subject to proper notice being given to potentially affected persons. ...

1. However, in each of these cases it is implicit that any additional primary permission included in the permit is a permitted use under the planning scheme. There has not been any consideration of whether a permit can be amended to include a use that is prohibited by the planning scheme.
2. We do not consider that the power to amend a permit can be taken this far so as to include a new prohibited use[34]. Whilst McDonald J in Seventh Columbo said that the power to amend a permit under section 87(1) of the Act was not constrained by the provisions of the planning scheme, we do not consider that he turned his mind to amending a permit by amending the use. He was concerned with an amendment of conditions. This is evident from his conclusion where he says:

[43] For the reasons expressed I have concluded that there was error of law in the Tribunal in determining that it did not have power under s.87(1) of the Act to amend the permit, the subject of these proceedings, by deleting condition 4 of the same. Section 87(1) of the Act properly interpreted does vest in the Tribunal a discretionary power to amend the subject permit by which the appellant enjoys the right to use the land as a brothel notwithstanding that that use is a prohibited use under section 3 of the relevant zone in the Planning Scheme. That power includes the power to amend the permit by directing that condition 4 be deleted.

1. Allowing a permit to be amended by including an additional prohibited use or changing a permitted use to a prohibited use would enable the planning controls in a planning scheme to be circumvented. All it would take to obtain a permit for a prohibited use would be to obtain a permit for a permitted use and then apply to amend the permit, or apply to amend any existing permit. We do not consider that this is consistent with the principles of interpretation discussed by Osborn AJA in Popular Pastimes Pty Ltd v Melbourne City Council[35] and in particular CIC Insurance Ltd v Bankstown Football Club [36], where the High Court said:

Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses "context" in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous...[I]f the apparently plain words of a provision are read in light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent.

1. Osborn AJA also refers to section 35(a) of the Interpretation of Legislation Act 1984, which further provides that in the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether or not that purpose or object is expressly stated in the Act) shall be preferred to a construction that would not promote that purpose or object.
2. In this context, we consider that an interpretation of the power to amend a permit (however this power arises) to include a new prohibited use would be contrary to the objective of the planning framework established by the Planning and Environment Act 1987 under section 4(2)(b), which provides:

(2) The objectives of the planning framework established by this Act are -

(b) to establish a system of planning schemes based on municipal districts to be the principal way of setting out objectives, policies and controls for the use, development and protection of land;

1. It would be contrary to this objective of the planning framework established by the Act, namely that planning schemes are the principal way of controlling the use of land, if planning scheme provisions prohibiting certain uses could be circumvented by simply amending a permit to include a new prohibited use.
2. We consider this would be a strange outcome and one that is counter-intuitive as recognised by Member Komesaroff in Wooling Hill Garden Estate[37] where she considered the scope of section 87A of the Act dealing with permit amendments. On this issue, she said:

[44] If, therefore, a prohibited use of land cannot be applied for under the planning scheme provisions, can one obtain such permission by way of the s.87 or s.87A amendment powers?

[45] In Seventh Columbo Pty Ltd v Melbourne City Council the Supreme Court of Victoria held there was power under s.87 to delete a condition restricting the hours of operation of a brothel expressed in its permit, even though the brothel had become a use prohibited in its zone. That was because the exercise of the s.87 power did not alter or expand the primary use permission, which was for a brothel. It only amended the regulatory conditions. In Beaufonte v City of Yarra & Ors the Court held that there was power under s.87 to amend the permit to extend the hours of operation expressed in a condition, notwithstanding that such a brothel had become a prohibited use as a result of being within 100 metres of a dwelling. Again, the exercise of the s.87 power did not alter or expand the primary use permission, which was for a brothel. It only amended the regulatory conditions.

[46] What the applicant wishes me to do here, however, is use the s.87A amendment power to add another primary permission for a separate and distinct land use that is now prohibited.

[47] Section 87A does not allow me to do more thereunder than I could do in the first place under the planning scheme. Permit amendments operate under the primary permit or permission; they may expand the operation of the primary permission, as in Seventh Columbo and Beaufonte but they cannot alter the permission to include a separate and distinct permission.

1. A further reason why we consider that a permit cannot be amended to include a new prohibited use relates to the nature of existing use rights established under the scheme.
2. As we discussed earlier, an existing use right established under the first dot point of clause 63.01 is a right to continue to use the land for the purpose of the use which was being carried out under the permit immediately before the scheme changed. Clause 63.01 would not operate to protect another prohibited use (apart from one authorised by a permit under clause 63.08) that was not being lawfully carried out immediately before the scheme changed.
3. Equally, the extent of any accrued right protected by section 28(2)(e) of the Interpretation of Legislation Act 1984 is restricted to the terms of the permit, including the use, at the time the scheme is amended. This would not encompass a new use added subsequent to amendment of the scheme.
4. For these reasons, we find that a permit, which establishes the lawful basis for an existing use right under the planning scheme, cannot be amended to introduce a new prohibited use in addition to the use for which an existing use right exists.
5. We therefore find that in law the permit in the present case cannot be amended to include the new use of a function centre.

1. On an application under section 149B of Act, the Tribunal may make any declaration it thinks appropriate in the circumstances.[38]
2. The council's application for declarations poses a series of questions, rather than requesting specific declarations. Based on the conclusions we have reached about the way in which permits may be lawfully amended, we propose to make the following declarations with respect to the restaurant and function centre uses:
   • Permit TP97/1029 for restaurant use can be amended to increase patron numbers from 60 to 274 under a section 72 application.
   • The permit cannot be amended to include the new use of a function centre.
   • The use of function centre could be considered as an alternative, but not additional, use pursuant to a permit application under clause 63.08 of the Mornington Peninsula Planning Scheme.
   • There is no difference in the way that a permit can be amended lawfully under either sections 72, 87 or 87A of the Planning and Environment Act 1987 in terms of the type of amendments that may be made.
3. There remains to consider the issues of whether a car parking reduction and alterations to access to a Road Zone Category 1 road can be considered in the context of this amendment of permit.
4. The need to provide car parking arises as a consequence of the use of land, whether that be a new use or an increase in floor area of an existing use.[39] In our view, a permit for an existing use can be amended to provide for or amend a car parking reduction in accordance with the principles of Seventh Columbo.
5. The need for a permit to create or alter access to a road in a Road Zone Category 1 arises under clause 52.29 of the planning scheme. There are no prohibitions within the planning scheme relating to this permit requirement. In our view, any permit may be amended to include a permission under clause 52.29 to create or alter access to a road in a Road Zone Category 1.[40]
6. Accordingly, we propose to make the following additional declarations:
   • The permit can be amended to include permission to waive or to reduce car parking under clause 52.06 of the Mornington Peninsula Planning Scheme.
   • The permit can be amended to create or alter access to a road in a Road Zone Category 1 under clause 52.29 of the Mornington Peninsula Planning Scheme.
7. These declarations all relate to the lawfulness or otherwise of amendments to the permit. They do not relate to the planning merits, which must be separately assessed. We now turn to a consideration of whether the permit should be amended in respect of those aspects of the application which we have found we can lawfully consider. In particular, we address the proposed increase in patron numbers for the restaurant use, the new buildings and works, the provision of car parking, and access to Mornington - Flinders Road.

IS THE SCALE AND INTENSITY OF THE PROPOSED DEVELOPMENT AND USE ACCEPTABLE?

1. In Seventh Columbo, the court said that the Tribunal was not constrained in the exercise of its discretion to amend a permit by the provisions of the planning scheme, this does not mean that the provisions of the planning scheme are not a relevant consideration to have regard to when exercising its discretionary power.
2. When it comes to considering whether we should amend the permit to increase patron numbers for the restaurant use and to approve the proposed buildings and works, the primary issue will be whether the scale and intensity of the proposed development and expanded use are acceptable. In assessing this, we find it is relevant to have regard to the policy context of the planning scheme.

1. The exercise of discretion under the provisions of the Green Wedge Zone is guided by the decision guidelines at Clause 35.04-6. These guidelines are extensive and require that consideration be given a wide range of matters including the capability of the land, the relationship of the use to the rural use on the land, the compatibility with adjoining uses and the visual impacts of proposed buildings and works.
2. In addition, the land is affected by a number of Overlays that recognise the environmental, landscape and scenic values of the site. These include the Environmental Significance Overlay (Schedules 10, 28 and 17) and the Significant Landscape Overlay (Schedules 1 and 6). In general terms, the Overlays seek to ensure that development is sited and designed to be responsive to the landscape and environmental context of the land.
3. As a fundamental starting point, the fact that the scale and intensity of the proposed uses is well beyond that contemplated by the zone provisions must weigh against the approval of the proposal.
4. We consider the policy intent is that a restaurant and/or function centre should be of a modest scale and intensity, and sit comfortably within the rural context without detracting from the inherent qualities from which the area derives its significance. Although how this might be achieved depends on the context of the site, the constraint imposed by the restriction on patron numbers, and by the minimum lot size, is a clear indicator that any such uses are to be of a relatively small scale such that they do not present as incongruous elements within the broader non-urban environment within which they are situated.
5. Whilst we acknowledge the benefit to the local economy, including employment opportunities, of having a restaurant of the scale proposed, we are not persuaded that the resultant built form and operation will represent an outcome which is sufficiently respectful of its context.
6. By any measure, it will be a large development - not only in terms of the numbers of people that would be accommodated on the land, but also in terms of its physical form and extent both in respect of the new buildings and the associated car parking areas and accessways. It will represent a significant change from the current conditions where the use is largely accommodated within former farm buildings and in informal outdoor spaces. The existing development, in our view, is not obtrusive and sits comfortably within the surrounding agricultural/rural context. It reflects the form of development which we believe is encouraged by the policies of the planning scheme.
7. The buildings and works proposed by the application will transform the existing development into a much larger and more 'refined' establishment such that it will lose the rustic appearance and ambience that we consider are very much part of its attraction. It will be significantly larger than any similar development in the immediate locality and will not be consistent with the overall policy intent that the scale of these types of uses be such that they appear as an almost incidental part of the overall rural land use and landscape.
8. Although we do not consider the buildings, of themselves, to be unattractive or highly intrusive, they are nonetheless extensive in comparison to what currently exists and, by virtue of their scale, are not consistent with policy.
9. Aside from the physical presence of the proposed built form, the scale and intensity of the uses are such that they will have impacts on the amenity of the area that will go significantly beyond what we consider is contemplated by green wedge policy. These impacts include traffic, noise and light, which will result in disturbance and detract from the quiet, rural environment.
10. These amenity impacts are addressed in the following sections of our reasons.

1. The treatment and disposal of the wastewater generated by the proposal was the subject of considerable discussion at the hearing. Witnesses gave evidence on behalf of the applicant and the council. In addition, both Mrs Porter and Mr Maddocks made detailed submissions on this issue.
2. Several policies within both the State Planning Policy Framework and the Local Planning Policy Framework of the planning scheme underscore the importance of managing wastewater appropriately, particularly in environmentally sensitive locations.
3. At the broadest level, Clause 11.03-2 states that planning is to contribute towards the protection of water quality and notes that planning should adopt best practice environmental management and risk management to avoid or minimise environmental degradation and hazards.
4. Clause 15.01 - Protection of catchments, waterways and groundwater - has the objective of assisting the protection and, where possible, restoration of catchments, waterways, water bodies, groundwater, and the marine environment. As part of the implementation of this policy, responsible authorities should ensure that land use activities with the potential to discharge contaminated runoff and wastes to waterways are sited and managed to minimise such discharges and to protect water quality.
5. Clause 18.09-2 encourages the re-use of wastewater (including runoff and treated sewage effluent) where appropriate, consistent with relevant Environment Protection Authority Guidelines.
6. At the local level, the MSS recognises the environmental significance of the Mornington Peninsula and identifies the importance of adopting best practice environmental management. Strategies nominated at Clause 21.09 - Conserving environmental values - include only allowing development where the long term protection of the environment is ensured; and protecting the land, air, waterways and ground water resources from polluting discharges and activities in accordance with the relevant State Environment Protection Policies and best practice environmental management guidelines.
7. The Mornington Peninsula Land Units Policy applies to all land within the Environment Significance Overlay Schedules 1 - 16, inclusive. The objectives of this policy relate to achieving sustainable use and development of rural land. It is policy that environmental sustainability is applied as a guiding principle and that a best practice environmental management approach be required as part of use and development proposals. Relevantly, the decision guidelines require the responsible authority to consider the capacity of land to accommodate the proposed development, having regard to the disposal of sewage, sullage and effluent on site. Where it is proposed to locate sewage, sullage or effluent within 60 metres of a streamline wetland, the responsible authority must be satisfied that no reasonable alternative site is available and that the requirements of State Environment Protection Policies will be met.
8. The applicant is proposing to replace the existing wastewater treatment system, comprised of a septic tank and dispersal field, with a packaged treatment plant that will produce Class A effluent. This effluent is to be used for toilet flushing and irrigating the vineyard. Concerns were expressed by the council and objectors about the acceptability of such an arrangement, with specific reference to the potential resultant impacts on the environment.
9. The council called evidence from Mr James Rennie, a scientist with expertise in river management and stormwater management, and from Ms Kay White, an engineer with expertise in the design of wastewater treatment plants and the re-use/disposal and wastewater effluent.
10. In summary, Mr Rennie's evidence was:
    • Manton Creek has a very high quantity of nutrients, and significant elevations of nitrogen and E. coli - particularly in that section which runs through the review site;
    • The existing sewage treatment facility on the review site is sub-standard and requires a significant upgrade;
    • The provision of a vegetated buffer along the riparian zone of the creek would improve the quality of the water entering the waterway;
    • Irrigation across the site would mitigate the impacts when compared with existing conditions, and would not result in a significant change to local hydrology;
    • Storage of treated effluent in a wetland would have benefits over storage in tanks, from a broader environmental perspective, particularly by further reducing nutrient loads;
    • The introduction of a wastewater treatment facility which produces Class A effluent would be a significant improvement upon existing conditions;
    • The risk of adverse impacts on Manton Creek as a result of the re-use or disposal of treated effluent is low if the water is treated to a high quality.
11. Ms White's evidence was that, subject to the recommendations contained in her evidence, the proposal treatment facility would be acceptable on the basis that it would produce Class A effluent with nutrient reduction. In response to questions from Mr Morris, Ms White agreed that the details of the treatment plant's design and operation would be addressed at the EPA Works Approval stage. Ms White also stated that drip irrigation was ideal for this site and that the 8 hectares of vines was well over what would be required to adequately utilise the effluent which is produced by the treatment plant.
12. The applicant called evidence from Mr Bellair. In addition to confirming the high performance nature of the proposed treatment plant, Mr Bellair advised that measurements conducted on the land had demonstrated maximum wastewater flows of 10kL/day, while the average wastewater flow was found to be 3kL/day. Any spikes in wastewater flow could be addressed by the installation of a balance tank to regulate the flow into the plant. The 3kL/day average wastewater flow would require a storage tank capacity of 600kL.
13. Mr Bellair stated that the use of drippers to irrigate the vines would mean that there was a low potential for runoff and that the overall application of treated effluent to the vines would be approximately 14mm per annum. He stated that such application equates to less than 25% of optimal application and would be therefore be fully utilised on the site.
14. As it transpired, Mr Bellair agreed with all but two of Ms White's recommendations. These relate to the organic loads and the capacity of the tanks which will be used to store the treated effluent.
15. In her detailed submission, Mrs Porter raised particular concerns regarding the impact on the environment of the salt which is contained in the effluent. Mrs Porter submitted that salt from the previous and current operations on the site has ended up on her land and adversely affected soil and vegetation. Concerns were also expressed in respect of the potential for the effluent to carry pathogens, thereby creating a health hazard, and of the effect of nutrients in the effluent upon ecosystems and the environment as a whole.
16. We are generally satisfied, on the basis of the evidence and information before us, that the wastewater generated on the site can be treated and utilised in a manner which will not have an unacceptable impact on the environment.
17. The proposed treatment plant will produce a high quality effluent of a Class A standard, with nutrient reduction. In addition, the facility incorporates a membrane which will filter matter up to 1/100th of a micron (thereby removing microbes, viruses and pathogens).
18. The re-use of this high quality recycled water for toilet flushing and irrigation of the vineyard is appropriate, as it will reduce demand for potable water. The irrigation will not only represent an efficient use of the treated wastewater, but will also assist in the on-going agricultural use of the land, consistent with state government policy for the green wedge areas.
19. The concerns expressed by Mrs Porter in respect of salt contained in the treated effluent are acknowledged. Both Mr Rennie and Mr Bellair did not consider that salt in the soil would be an issue, while Ms White stated that even if all the salt in the effluent was to end up in Manton Creek, the resultant increase would not be significant. Mr Rennie stated that salt was not seen as a major factor given the size of the land. Given the agreement of the three experts on this matter, we accept that the treated effluent will not result in unacceptable levels of salinity in either the soil or water environment.
20. In respect of the outstanding matters of organic loads and the capacity of the storage tanks, we accept that these would be addressed at the Works Approval stage. Suffice to say that we are satisfied that these matters can be resolved.

1. One of the grounds upon which the council opposes the application relates to the proposed car parking provision. Specifically, the council considers that the car parking demands of the proposal have not been adequately assessed and will result in the continuation of overflow parking on Mornington-Flinders Road.
2. Mornington-Flinders Road is within a Road Zone Category 1 and has a speed limit of 100km/hr. It has unmade verges and makes no provision for roadside parking. Notwithstanding this, the roadside is currently being used by patrons for overspill parking, when the on-site parking areas are fully occupied.
3. We accept that the proposal must be self-sufficient in accommodating all its car parking on the review site, given that parking on the roadside is potentially dangerous.
4. Mr Turnbull gave evidence on behalf of the applicant. He said that the proposed car parking provision was sufficient to cater for the demands of both staff and patrons and would avoid the need for persons to park outside the review site within the road reservation. His recommended car parking rates of 0.47 space/patron and 0.83 space/staff member were derived from a case study conducted on the site during a peak operating time (a Sunday afternoon in September 2008). The application of these rates results in a requirement for 171 car spaces.
5. We note that this calculation is based on the available seating in the dining areas only and does not take into account the 40 persons attending the cellar door/wine experience area. At its peak operation, the site would accommodate 314 patrons and 35 staff. The application of the rates derived from Mr Turnbull from his case study of the site would result in a requirement for 177 spaces.
6. The council's desired staff car parking provision of 1 space per staff member was put to Mr Turnbull. Mr Turnbull subsequently tabled a copy of a modified plan which showed an additional 12 car spaces being accommodated on the land. This can be achieved by re-configuring the car parking layout, without altering the perimeter of the car park or the loss of any manoeuvring space for B-double vehicles associated with the vineyard use.
7. The revised plan submitted by Mr Turnbull shows the provision of 183 spaces on the site.
8. The council would like to have parking for patrons provided at a rate of 0.6 spaces per person, reflective of the restaurant car parking rate in Clause 52.06. No evidence, however, was presented to demonstrate that Mr Turnbull's recommended rate would result in insufficient car parking being provided on the review site for the restaurant uses. Further, the application of the 0.47 space/patron rate is above the 0.3 space/seat rate specified for a Place of Assembly (ie the function centre) in Clause 52.06. As the rate has been derived from a study undertaken on the review site at a time when there were 265 patrons on the site, we consider that this rate is reflective of the likely parking demand.
9. Nevertheless, we accept the Council's submissions that, unlike patrons, staff are more likely to make single occupant vehicle trips. This is due to their attendance being for work purposes (rather than for leisure, which would more likely involve multiple occupant trips) and the fact that the site is remote from urban settlements and public transport services. At the peak attendance of 314 patrons and 35 staff, 183 car spaces would be required. This number accords with that shown in Mr Turnbull's revised plan (and in the substituted plans).
10. To avoid any roadside parking, Mr Turnbull recommended that 'No Standing' signs be erected on Mornington-Flinders Road in proximity to the review site. Consideration was also given to the proposed 'Venue Operations Management Plan' which includes a requirement that signs stating "Car Park Full" be displayed at times when the car parking areas were fully occupied. Mr Turnbull advised that the content of the signs should read "Venue Full" to discourage persons from parking in Mornington-Flinders Road and seeking to attend the facility.
11. The assessment undertaken by Mr Turnbull does not take into account the parking demands associated with the operation of the vineyard which results in an additional 8 staff being present on the site during the vintage period. In response to this issue, Mr Turnbull advised that tandem spaces can be placed to the south of the existing shed to accommodate workers' vehicles. We accept that this is a potentially workable solution.
12. Mornington-Flinders Road is under the control of VicRoads. There is no objection to the proposal from VicRoads subject to specified conditions. These conditions include the provision of a left turn deceleration lane and a right turn lane into the site. The applicant has agreed to these conditions. We are satisfied from Mr Turnbull's evidence that the traffic impacts of the proposal would be acceptable.
13. Mornington-Flinders Road carries significant volumes of traffic. We place weight on VicRoads' conditional support of the proposal and we also note that the council's grounds for not supporting the application did not include reference to traffic impacts. Nor do the council's Traffic Engineers (as detailed in the officer's report) express concerns regarding the traffic implications of the proposal, subject to conditions.
14. There is only one matter in dispute between the applicant and VicRoads. This relates to a VicRoads' requirement that the southern access point be modified to accommodate a left turn out only. VicRoads do not wish to have this access point used as an entry into the site. Mr Turnbull advised that he does not agree with this requirement as the southern access will only be used in association with the operation of the vineyard and will be not be used by either staff or patrons of the restaurant/function centre/cellar door premises. He also suggested that a gate system and appropriate signs could be included to restrict use of the access point for vineyard operations only.
15. We agree with Mr Turnball that use of the southern access point need not be banned altogether. For reasons associated with the safety and efficiency of the Mornington-Flinders Road, we agree that patrons and staff of the proposed restaurant/function centre/cellar door should not be permitted to access or exit the site from this opening. We consider, however, that it would be reasonable to restrict the use of the southern access to vehicles associated with the vineyard operations, provided use of this access point is on the basis of left-in/left-out. This will allow the efficient operation of the vineyard without the need to use the main driveway, that will then be set aside for the sole use of patrons and staff.
16. Therefore, based on the provision of 183 car parking spaces and restrictions on the use of the southern access point, we consider that the traffic and car parking effects of the amended proposal would be acceptable.

1. The rural context of the review site, by its very nature, is characterised by a low background noise level. Ms Hui gave acoustic evidence on behalf of the applicant. She stated that the measurements undertaken by her firm revealed a background noise level of 27dBA. In comparison, a suburban location displays a background noise level of 35dBA - 45dBA.
2. Within this context, the surrounding properties are particularly sensitive to noise disturbance. This sensitivity represents an important constraint on the operational characteristics of the use, as any noise emanating from the site is likely to be particularly noticeable and has the potential to have a greater impact on amenity than would be the case within an urban environment.
3. The three key noise sources which are required to be addressed are music noise, mechanical noise associated with plant equipment and patron noise (including noise generated by vehicles). It was Ms Hui's evidence that all three noise sources could be regulated by a variety of physical, operational and technological means to ensure that the acoustic impacts of the use are not unreasonable. These measures include alterations to the buildings, the enclosure of plant equipment, the use of noise limiters and restrictions on hours during which the outdoor areas are used.
4. We accept that mechanical equipment can be sited and treated to achieve compliance with SEPP N-1[41]. We accept Ms Hui's evidence that the noise limits for mechanical services can be achieved using low noise equipment, duct attenuators, acoustic enclosures and barriers. We note that this component of her evidence was not challenged.
5. According to the applicant's evidence and submissions, the containment of music noise to acceptable limits is able to achieved utilising a combination of physical measures (such as air locks), noise limiters to control amplification and management measures which would restrict the playing of music to certain times. Ms Hui's evidence was that music noise associated with the proposed uses can be made to comply with SEPP N-2[42]. It was also stated that, in the event that the noise limiters restricted volumes to a level which was not satisfactory to the operator, then alterations to the buildings could be undertaken to provide acoustic insulation and allow music to be played at a higher volume.
6. Management measures to restrict entry and exit to selected doors which have air locks would also be required. For example, this would require the doors in the eastern elevation of the Spuntino Bar to be made unavailable for use at times when music is played, as the doors lead directly out into the adjoining courtyard and are not provided with an air lock arrangement.
7. Noise associated with patrons (and vehicles) is more problematic as there are no standards against which such noise can be objectively assessed. In the absence of relevant standards, Ms Hiu advised that her analysis had utilised a combination of SEPP N-1, SEPP N-2 and sleep disturbance criteria (which is based on a review of sleep disturbance studies undertaken by the NSW Environment Protection Authority) to assess whether the noise generated by patrons in the external areas would be unreasonable.
8. Our greatest concern about noise management relates to the noise associated with patrons and vehicles - particularly during the evening and night-time periods when the background noise level will be at its lowest and any noise at its most audible.
9. There are three key external areas where noise will be generated: the outdoor seating area beneath and adjacent to the proposed pergola on the eastern side of the building; the external smoker's courtyard to the south of the proposed pergola; and the car parking areas.
10. In her evidence, Ms Hui stated that there was some concern that the assessment of night-time noise associated with people arriving or departing the venue, or smoking and talking in outdoor areas, against the sleep disturbance criteria may not be sufficient to protect amenity in areas where ambient noise levels are low, or where the hours of operation of the venue extend into the night-time period. For this reason, Ms Hui used a combination of the three criteria detailed above to undertake the assessment of the patron noise.
11. Ms Hui undertook an analysis which assumed 140 persons in the outdoor dining area and with sliding doors and louvres of the pergola area fully open. This analysis found that noise from patrons would exceed the SEPP N-1 night time limit. This was also the case for the SEPP N-2 night time noise limit, which would be exceeded even if the sliding doors and louvres were closed. The sleep disturbance criteria would, however, be satisfied, regardless whether the pergola area was enclosed or not.
12. As a consequence of these findings, Ms Hui recommended that the outdoor courtyard either not be used after 10.00pm or that it be re-designed to incorporate a fixed roof and operable wall system so that it can be converted into a fully enclosed space during the night-time period. Mr Morris advised us that the applicant was willing to accept a condition that the pergola area - presumably being a reference to all the outdoor dining areas - not be used after 10.00pm.
13. Ms Hui found that noise from the car parking area, being a combination of cars braking, doors slamming and cars accelerating away from a stationary position, as well as general noise from people talking within the car park area, would not exceed the lower level of sleep disturbance criteria.
14. During cross-examination by the council, Ms Hui stated:
    • Consideration had not been given to the use of the courtyard area located directly to the south of the outdoor dining area. This courtyard is annotated on the plans as being a designated smoking area. In response to this issue, Ms Hui recommended that the smoking area be limited in size, that persons not be permitted to take alcohol or other drinks into this area in order to discourage congregating or protracted stays, and that the use of this area be policed to ensure that allowable numbers are not exceeded. No indication of what would be considered an acceptable number of people in this area was given.
    • The assessment of patron noise was only undertaken during the night-time period. No assessment of this noise during the daytime and evening period was undertaken. There is no tool for doing so.
    • Sleep disturbance criteria is based on one-off noise events (such as a truck passing) rather than a constant noise source.
15. Given the scale and intensity of the proposed restaurant and function centre uses, we consider the noise generated on the site has the very real potential to adversely impact the amenity of this rural location. As stated earlier, this locality is characterised by low background noise, which will have the result of making any noise emanating from the site more audible than would otherwise be the case if background noise levels were higher.
16. Although the evening and night-time are the more sensitive periods, this does not mean to say that noise generated during the daytime period will not affect the amenity of the residential properties which are proximate to the review site. This is particularly so during the weekend period when residents are more likely to be at home and expecting to enjoy the more tranquil qualities of a location such as this.
17. While understanding the basis for Ms Hui's assessment of patron noise, We are concerned that:
    • SEPP N-1 specifically excludes noise from crowds and voices;
    • SEPP N-2 also specifically excludes patron noise, except noise from human voices and activities within the premises that are associated with the music sources;
    • Sleep disturbance is based on vehicle traffic noise and only applies to the night-time period.
18. When it comes to assessing patron noise, and the impact it may have on this noise sensitive location, none of these criteria are to the point. Even when used in combination, we have doubts that the conclusions of such an assessment would be a reasonable indicator of the acceptability or otherwise of the likely impacts.
19. The patron noise arising from a use of this scale can be significant. This noise will emanate from the outdoor dining areas, the smokers courtyard and the car parking areas. The constancy of this noise, together with spikes in volume which can be characteristic of the intermittent nature of interjections and laughter, for example, will have a continuing impact of the acoustic environment of the locality throughout the course of the day, but especially in the evening and night time.
20. We also consider that the suggested mechanisms for limiting the hours and numbers of people outside are unlikely to be effective because they are too prone to being poorly managed and enforced. The same can be said for the management measures restricting external access from some doors whilst music is playing. In our view, there are too many opportunities for management measures to be breached, which will increase the potential for noise and create ongoing problems of enforcement.
21. We are therefore not satisfied that the acoustic impacts will be able to be controlled to ensure that detriment will not result to the amenity of the area. We consider that the extent of the impact is a direct function of the scale of the proposed use.

1. We are not persuaded that the proposal, due to its scale and intensity, could comfortably co-exist with the rural character and activities of this locality.
2. A facility accommodating up to 274 patrons, with provision for functions/ celebrations, serving of alcohol and the playing of amplified music is a marked departure from the hobby farms, rural residential living and agricultural land uses that prevail in the surrounding area. That is not to say that a restaurant and/or function centre is not permissible on land within the Green Wedge Zone. These uses are clearly contemplated by the provisions of the Green Wedge Zone, albeit with restrictions on land size and patron numbers. Each case must, however, be assessed on its merits. The context of properties within the Green Wedge Zone can vary from site to site. Some sites may well lend themselves to a greater intensity of use than others. Some sites with existing use rights may well be able to have their permits amended to a greater extent than others. But in this location, the rural context demands a more moderate scale of operation than is proposed. The proposal as it currently stands will detract from the character of this area, with consequential adverse impacts on the amenity of the neighbouring and nearby properties.
3. We therefore conclude that the permit should not be amended to allow an increase in patron numbers for the restaurant to 274 or the proposed buildings and works and consequential changes to carparking and road access.

• Permit P1376/95 was issued on 21 August 1995 and authorised a Winery and Cellar Door Sales. There are no restrictions on the number of patrons/customers. A document endorsed as part of the permit specifies that the 'envisaged hours of operation for the cellar door sales are Noon to 5pm 7 days a week'.

• Permit TP97/1029 was issued on 7 October 1997 and authorised the use of an existing building as a restaurant in association with wine tasting and cellar door sales. Condition No. 2 of the permit states that, except with the further written consent of the Responsible Authority, the use may only operate between the hours of 12.00pm (noon) - 5.00pm seven days a week. Condition No. 6 restricts the number of seats to not more than 16, unless with the prior written consent of the Responsible Authority. Additional conditions also include restrictions on the preparation and serving of food.

• Permit No. P981005 was issued on 1 October 1998 and authorised alterations and change of use to an existing building for wine tasting and restaurant. Conditions restrict the number of seats to 60, and the hours of operation to 9.00am - 5.00pm seven days a week, without the written consent of the Responsible Authority.

• Permit No. P00/2232 was issued on 21 May 2002 (amended on 30 August 2002 and 14 November 2003). This permit was the subject of an application to the Tribunal for a review of conditions. The permit authorises an extension of hours for the existing restaurant and cellar door sales. Condition No. 8 of this permit states:

The restaurant and cellar door sales must not be open to the public (including private functions) outside the hours of:

• Monday to Thursday 9 am - 5 pm
• Friday and Saturday 9 am - 11pm
• Sunday 9am - 5pm

except during the period 1 November - 1 April and the Queens Birthday weekend Wednesday, Thursday and Sunday to be 9 am - 11pm.

The restaurant and cellar door sales must be closed on Good Friday and Christmas Day.

These times may be varied by the Responsible Authority at its discretion for a maximum of four times during any twelve month period.

Unless with the permission of the Responsible Authority, not more than 60 seats must be provided for patrons of the approved restaurant use. This includes any seating provided outdoors. After 5pm no more than 60 seats must be provided to patrons of the restaurant.

[1] Seventh Columbo Pty Ltd v Melbourne City Council [1998] VSC 7; 22 AATR 325

[2] We have considered all submissions, evidence and accompanying material. We do not recite all of the material presented as all documentation is retained on the Tribunal's file. All questions of law have been determined by Deputy President Gibson notwithstanding any language to the contrary used in these reasons.

[3] Permit No TP97/1029 for restaurant in association with wine tasting and cellar door sales.

[4] Seventh Columbo Pty Ltd v Melbourne City Council (1998) VSC 7; 22 AATR 325

[5] The applicant did not specifically concede that it was in breach of its permits. The permit amendment application is an attempt to avoid enforcement action. As these are not enforcement proceedings, we therefore make no specific findings on whether the current operations actually breach the permits.

[6] [1998] VSC 7; 22 AATR 325

[7] Popular Pastimes Pty Ltd v Melbourne CC [2008] VCAT 1184 at [62]

[8] Vomanda Pty Ltd v Melbourne CC [1999] VCAT 554; (1999) 2 VPR 91

[9] Malo Pty Ltd v Mornington Peninsula SC [2008] VCAT 510

[10] Popular Pastimes Pty Ltd v Melbourne CC (red dot) [2008] VCAT 1184 at [51]- [58]. See also Peacock Amber Pty Ltd v Frankston CC [2000] VCAT 1663 and Lakkis v Wyndham CC [2001] VCAT 1046

[11] In certain respects we do not consider that this aspect of the application is particularly well considered. For example, permit P1376/95 authorises a winery and cellar door sales. The land is no longer used for a winery as this use is presently defined in the planning scheme because the land is no longer used for the manufacture of vineyard products (wine). Cellar door sales may have been a separate land use in the planning scheme when this permit was first granted, but such a use is no longer separately defined. Rather, it would be covered now by clause 52.27, which requires a permit to use land to sell or consume liquor. The application proposes to amend the use to include the sale of liquor from the premises, but it purports to limit the use to the use of an existing building as a restaurant and function centre in association with wine tasting and cellar door sales. Conditions in the permit continue to refer to cellar door sales. We are not certain what purpose is served by this limitation to an existing building (as the restaurant proposes to operate in both the existing and new buildings) and why there is a continued reference to the redundant use of cellar door sales.

[12] This permission presumably replaces the use allowed by permit P1376/95, which authorised cellar door sales. Cellar door sales may have been a separate use in the planning scheme when this permit was first granted, but there is no longer any such separate use defined. Rather, clause 52.27 now requires a permit to use land to sell or consume liquor.

[13] We refer to these sections by way of shorthand. In fact, section 72 is part of Division 1A of Part 4 of the Act and sections 87 and 87A are part of Division 3 of Part 4. The whole of each Division deals with the relevant process and the way the power to amend permits must be exercised.

[14] Division 1A - Amendment of permits by responsible authority (sections 72-76D) were included in 2004 and section 87A in 2007.

[15] See Jolin Nominees Pty Ltd v Moreland CC (Red Dot) [2006] VCAT 467; Zuzek v Boroondara CC (Red Dot) [2007] VCAT 2174; Bestway Group Pty Ltd v Monash CC (Red Dot) [2008] VCAT at 60

[16] Zuzek v Boroondara CC (red dot) [2007] VCAT 2174; Bestway Group Pty Ltd v Monash CC (Red Dot) [2008] VCAT 860

[17] See Westpoint Corporation Pty Ltd v Moreland CC (Red Dot) [2005] VCAT 1049

[18] [2007] VCAT 2226 at [43]

[19] See Beaufonte v Yarra City Council (1995) 17 AATR 233 where the Supreme Court held that the prohibition in section 74(1)(b) of the Prostitution Control Act 1994 only applied to the grant of a new permit and did not (at least as the law then existed) affect an application to modify an existing permit under section 87 of the Planning and Environment Act 1987. See also Popular Pastimes Pty Ltd v Melbourne CC (Red Dot) [2008] VCAT 1184.

[20] Section 4(2)(b) Planning and Environment Act 1987. There are some exceptions to this, such as section 61 subsections (2), (3) and (4), but they do not detract from this general principle.

[21] [2001] VCAT 863

[22] Deputy President Macnamara refers to clause 62 in this passage but this appears to be a typographical error and should refer to clause 63.

[23] For a further discussion of accrued rights and the limitations associated with them, see Glenelg CC v Printz Pty Ltd (Red Dot) [2009] VCAT 2477

[24] See Kraan v Cardinia CC [2006] VCAT 1629 at [28]- [29]

[25] Seventh Columbo Pty Ltd v Melbourne City Council [1998] VSC 7; 22 AATR 325

[26] For the purpose of this analysis, we have ignored other uses for which permits have been granted, such as cellar door sales.

[27] Whether it should be amended on the planning merits is a separate issue.

[28] Accident Towing and Advisory Committee v Combined Motor Industries Pty Ltd [1987] VicRp 48; [1987] VR 529

[29] Clause 63.05 provides (in part) that a use in section 2 or 3 of the zone for which an existing use right is established may continue provided:

• Any condition or restriction to which the use was subject continues to be met. This includes any implied restriction on the extent of the land subject to the existing use right or the extent of activities within the use.

[30] [1998] VSC 7 at [41]

[31] Bestway Group Pty Ltd v Monash CC (red dot) [2008] VCAT 860 at [20]- [23]

[32] Australian Slate-Crete Supplies v Casey CC (Red Dot) [2008] VCAT 6 at [25]- [29]

[33] Bestway Group Pty Ltd v Monash CC (Red Dot) [2008] VCAT 860 at [16]

[34] In this discussion we exclude any reference to an alternative section 3 use under clause 63.08.

[35] [2007] VSCA 188 at [52] - [55]

[36] [1997] HCA 2; (1997) 187 CLR 384 at 408 per Brennan CJ, Dawson, Toohey and Gummo W J J, quoted with approval by Osborn AJA in Popular Pastimes.

[37] Wooling Hill Garden Estate Pty Ltd v Macedon Ranges SC [2007] VCAT 2226

[38] Section 149B(2) of the Planning and Environment Act 1987

[39] Clause 52.06-1 Mornington Peninsula Planning Scheme.

[40] Seventh Columbo Pty Ltd v Melbourne CC [1998] VSE 7; [1998] VSC 7; 22 AATR 325; Bestway Group Pty Ltd v Monash CC (red dot) [2008] VCAT 860; Australian Slate-Crete Supplies v Casey CC (red dot) 2008 VCAT 6.

[41] State Environment Protection Policy (Control of Noise from Commerce, Industry and Trade) No. N-1.

[42] State Environment Protection Policy (Control of Music Noise from Public Premises) No. N-2.